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ELCAllowedNot stated in the judgment· [2024] KEELC 5319 (KLR)

Bongoi v Barno & 2 others (Land Case E023 of 2023) [2024] KEELC 5319 (KLR)

Environment and Land Court
18 July 2024
EOE. O. OBAGA
1,036 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed you can appeal most rulings only with the court's permission, granted here because the request came within 14 days.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (E. O. Obaga, Judge) determined a Notice of Motion dated 1.3.2024 in which the 2nd Defendant sought leave to appeal against the court's ruling of 29.2.2024. The underlying dispute arises from a suit by the Plaintiff/Respondent against the Applicant and two other parties, with an injunction application. Before that application was heard, the Applicant filed a preliminary objection contending that the injunction application and the entire suit were barred by Section 7 of the Civil Procedure Act (res judicata) and Section 4(1)(a) of the Limitation of Actions Act (limitation). The ruling of 29.2.2024 upheld the res judicata objection against the injunction application but dismissed the limitation objection against the suit. The Respondent opposed the leave application, arguing the intended appeal was frivolous and would delay the suit. The court identified a single issue: whether leave was required. Applying Order 43 Rules 1 and 2 of the Civil Procedure Rules and section 75 of the Civil Procedure Act, the court held that appeals lie as of right only from listed orders and with leave from any other order. Since the application was made on 1.3.2024, within 14 days of the ruling, the court allowed the motion in terms of prayers 2 and 3, granting leave to appeal. The judgment is silent on costs.

Key legal issues

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01

Whether leave of the court is required to appeal against the ruling of 29.2.2024 upholding a preliminary objection on res judicata and dismissing a limitation objection

Holding

Leave is required because a ruling on a preliminary objection is not among the orders under Order 43 Rule 1 from which an appeal lies as of right, but the leave application was filed within 14 days and was therefore allowed.

Reasoning

The court examined Order 43 Rules 1 and 2 of the Civil Procedure Rules and section 75 of the Civil Procedure Act. Orders from which appeal lies as of right are exhaustively listed; any other order requires leave. The ruling of 29.2.2024 was such an order. The application dated 1.3.2024, one day after the ruling, was within the 14-day window, and the Applicant was entitled to a second opinion from a higher court.

p. 3

Legal principles established

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  • An appeal lies as of right only from the orders listed under Order 43 Rule 1 of the Civil Procedure Rules; appeals from any other order require leave of the court.
  • An application for leave to appeal must be made orally or by formal application within 14 days of the making of the order.

Court orders

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  1. 1.Leave granted to the Applicant to appeal against the ruling of 29.2.2024, in terms of prayers 2 and 3 of the Notice of Motion dated 1.3.2024

Authorities

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Legislation

  • Civil Procedure RulesOrder 43 Rules (1) and (2)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 4(1)(a)
Jurisdiction invoked
Order 43 Rules (1) and (2) of the Civil Procedure Rules and sections 1A, 1B, 3A and 75 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bongoi v Barno & 2 others (Land Case E023 of 2023) [2024] KEELC 5319 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5319/eng@2024-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.